0120061627
08-16-2007
Carey S. Weathersby, Complainant, v. Dirk Kempthorne, Secretary, Department of the Interior, Agency.
Carey S. Weathersby,
Complainant,
v.
Dirk Kempthorne,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01200616271
Hearing No. 100-2004-00179X
Agency No. 0S-03-011
DECISION
Complainant filed an appeal with this Commission from the December 14,
2005 agency decision which implemented the September 30, 2005 decision
of the EEOC Administrative Judge (AJ) finding no discrimination.
Complainant alleged that the agency discriminated against him on the basis
of age (D.O.B. October 27, 1935) and reprisal for prior EEO activity when
on August 21, 2002, complainant was notified that he was not selected for
the position of Director, GS-15, Office for Educational and Community
Partnerships; and (2) he was denied documents and information through
the Freedom of Information Act (FOIA) concerning the selection for the
position above.
After the completion of the investigation of his complaint, complainant
requested a hearing. A hearing, continuing over the course of several
days, with six witnesses and complainant testifying, was held before
the AJ.
The record reveals that complainant applied for the position of Director,
Office for Educational and Community Partnerships under vacancy
announcement No. OS-02-57, was found qualified, and was interviewed
for the position. Five candidates were referred for selection and all
were interviewed by the selecting official. The selectee was about 40
years old during the relevant time period. The record reveals that the
selecting official was aware of both complainant's and the selectee's
prior EEO activity.
In his decision finding no discrimination, the AJ concluded that the
agency had articulated legitimate, nondiscriminatory reasons for not
selecting complainant and that complainant had failed to proved by a
preponderance of the evidence that the agency's articulated reasons were
pretext to hide unlawful discrimination. In so concluding, the AJ noted
the testimony of the selecting official in which the selecting official
stated that he did not choose complainant because he did not believe
that complainant was the best qualified to lead the office based on
the job duties listed for the applicable position description. The AJ
also noted that the selecting official testified that complainant was
very analytical and was obviously a bright individual who could solve
problems but that a lot of complainant's relevant work experience was not
recent and that the selecting official was looking for someone who could
manage and advance multiple projects. The AJ also noted the selecting
official's testimony that he was not looking for a technical expert.
The AJ noted that of the five candidates, the selecting official ranked
the selectee first and complainant fourth.
The AJ noted the selecting official's testimony that he had developed
three interview questions and asked the same questions of each candidate.
The AJ also noted the selecting official's testimony that when complainant
was asked to explain specifically what skills, experience and overall
qualifications he had that made him the best candidate, complainant's
answer was not responsive and complainant instead discussed problems
he had had in other situations and complaints he had filed based on
similar positions for which he had applied for in the past. The AJ
also noted that the selecting official testified that complainant
discussed his personal affairs, his early work in human resources,
his work with schools and youth, his teaching experience and relevant
technological skills. Concerning the interview, the AJ also noted that
when complainant was asked how would he proceed if he had been given an
assignment to assemble a workgroup plan, develop, and ultimately implement
a new department-wide program, complainant's response was very analytical
and described a fundamental process of putting a work group together and
outlined his response in a very methodical way. The AJ noted that the
selecting official did not remember the details of complainant's response
to the third question which was "[i]f complainant had an opportunity to
make changes that would improve the current organization, what changes he
would make and why." The selecting official did remember that complainant
answered the third question best, noting that his response was clear
and complainant was engaged.
In his decision, the AJ noted complainant's arguments that he had been
deemed qualified for the same position previously and it was canceled;
that the selectee had an unfair advantage in the selection process by
virtue of a temporary promotion and detail that he had obtained without
competition; that the vacancy announcement and position description
for the position was revised by the selectee which gave the selectee
an advantage in the selection process; and that the agency violated
its policies in order to illegally create the Office of Educational
and Community Partnerships but that the office was never officially
created.
The AJ noted that even if complainant were preselected and the
articulated reasons for the nonselection were disbelieved, the trier
of fact could, but was not required to, find discrimination. The AJ
further noted that for the employee to prevail, the trier of fact had
to be persuaded that intentional discrimination occurred. The AJ also
concluded that complainant had failed to rebut the agency's explanations
for its actions.
Regarding reprisal, the AJ concluded that although the selecting official
was aware of complainant's prior EEO activity, that this awareness was
not linked to his nonselection of complainant and he found credible
the selecting official's testimony that it was complainant, and not the
selecting official, who initiated a discussion of EEO activity during
the interview for the position.
On appeal, complainant contends, among other arguments, that the AJ
failed to consider the prejudicial impact that the agency's denial of
job interview notes had on the outcome of his complaint.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Upon review, the Commission finds that the AJ's decision is based upon
substantial evidence and that the AJ properly summarized the relevant
facts and referenced the appropriate regulations, policies and laws.
Complainant has failed to show by a preponderance of the evidence that
the agency's reasons for not selecting him were mere pretext to mask
unlawful discrimination and, further, that the agency's action in not
selecting him was motivated by discriminatory animus and retaliation.
As an initial matter, the Commission finds that the agency properly
dismissed claim 2 of the complaint on the grounds that it fails to state
a claim. The Commission does not have jurisdiction over the processing
of FOIA requests. Individuals having a dispute regarding FOIA requests
should bring their appeals about the processing of such requests under
the appropriate FOIA regulations. Gaines v. Department of the Navy,
EEOC Request No. 05970386 (June 13, 1997).
In the instant case because the agency has articulated a legitimate,
nondiscriminatory reason for complainant's nonselection and its
selection of the selectee, the prima facie inquiry is dispensed with.
The AJ properly concluded that the agency had articulated legitimate,
nondiscriminatory reasons for its action and that complainant failed to
show by a preponderance of the evidence that the agency's real reasons
were pretextual and motivated by discriminatory animus.
In nonselection cases, pretext may be found where a complainant's
qualifications are demonstrably superior to the selectee's qualifications.
It is undisputed that complainant was qualified for the position.
However, complainant has not shown, despite impressive qualifications and
his extensive experience, that his qualifications were plainly superior
to those of the selectee. Wasser v. Department of Labor, EEOC Request
No. 05940058 (November 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048
(10th Cir. 1981).
Regarding complainant's contention that the selectee was preselected,
the Commission notes that preselection, per se, does not establish
discrimination when it is based on the qualifications of the selected
individual and not on some basis prohibited by the discrimination
statutes. McAllister v. United States Postal Service, EEOC Request
No. 05931038 (July 28, 1994). The Commission and federal courts have
determined that preselection is not unlawful if it is based on the
qualifications of the selectee and not on a discriminatory motive.
Nickens v. National Aeronautics and Space Administration, EEOC Request
No. 05950329 (February 23, 1996); Goostree v. State of Tennessee, 796
F.2d 854, 861 (6th Cir. 1986). In addition, even were we to assume that
the selectee was indeed preselected as complainant alleges, the record
establishes that the selectee had relevant experience and skills for
the position and was qualified for the position.
We reject complainant's assertion that the agency used wholly subjective
criteria in making its selection. The Commission has recognized that the
use of subjective criteria may offer a convenient pretext for unlawful
discrimination. See Wilson v. United States Postal Service, EEOC Request
No. 05921062 (August 12, 1993). On the other hand, subjective criteria
are frequently relied upon in promotions to supervisory or management
positions and the use of such criteria is not, in and of itself, an
indicator of discriminatory motivation. Fodale v.Department of Health and
Human Services, EEOC Request No. 05960344 (October 16, 1998). Even were
we to assume that the agency did use subjective criteria, the Commission
has held that an employer has more discretion in selecting management
level employees because the qualities needed to successfully perform in
such positions are not easily quantifiable. See White v. Department of
Interior, EEOC Request No. 05930686 (September 1, 1994).
To the extent that complainant may be alleging that the agency failed
to follow its own procedures in the selection process, this condition
alone is not sufficient to support an inference of pretext. Regarding
complainant's assertion that complainant falsified his application, the
record shows that complainant referred to himself on his resume as the
Acting Director when he did not officially hold the title. The record
establishes, however, that there were no inaccuracies regarding the
actual duties that the selectee was performing and that complainant had
served in the position on a detail. Moreover, the selecting official
was aware of complainant's correct title and his duties and he testified
that he brought complainant's attention to the inaccuracy. Also, the
selecting official had talked with the Human Resources office regarding
an accretion of duties for the selectee because the selecting official
had had the selectee performing additional duties and had had him "pick
up the slack."
Regarding the destruction of interview notes, the Commission notes that
pursuant to EEOC Regulation 29 C.F.R. � 1602.14, agencies have a duty to
preserve records pertaining to appointments, selections and demotions.
Moreover, the regulation requires that once the complaint process is
initiated, the agency is required to retain personnel records until a
final disposition of the complaint. The Commission also notes that the
AJ could have acted within his discretion to draw an adverse inference
against the agency. See 29 C.F.R. � 1614.108(c)(3)(i); Hale v. Department
of Justice, EEOC Appeal No. 01A03341. The appropriate adverse inference
that the AJ could have drawn was that the missing information would have
reflected unfavorably on the agency. Even if this adverse inference
were drawn in the instant case, however, the evidence of record does
not establish that complainant would have been chosen over the selectee
for the position. We do not find that the notes were determinative
because complainant has not demonstrated that the notes would show that
complainant would have been selected for the position based solely on
interview notes. Further, in this case, we do not find that the notes
were destroyed in bad faith. Moreover, the agency has set forth, with
sufficient clarity, reasons for complainant's nonselection and complainant
has been afforded a full and fair opportunity to demonstrate that those
reasons were pretextual.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as the
defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your
time in which to file a civil action. Both the request and the civil
action must be filed within the time limits as stated in the paragraph
above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 16, 2007
__________________
Date
1 Due to a new data system, this appeal has been re-designated with the
above-referenced appeal number.
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0120061627
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036